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Sales (see also UCC Article 9)
University of Connecticut School of Law
Weisbrod, Carol Ann

Sales Checklist

1) Is there an enforceable K. Determine whether there is an enforceable K
2) What are the elements of the K.
Ranked in order
A) Agreement of the Parties. Agreement is paramount and reference should be made to it 1st
B) Customs and usage. Agreement silent or incomplete, àrefeence made to industry customs and standards
C) UCC Rule. “Gap Filling” rules supply missing terms.
3) What kind of Sales transaction is involved?
A) Is the transaction in fact a “sale” distinguish sale form other agreements (i.e. lease, bailment, or consignment)

Nature of transaction is determined by the legal effect it has on the relations of the parties to the goods

Sale involves transfer of title to the goods
Parties designation is not controlling

B) Is it a cash or credit transaction

CashàDetermines whether pymt is due at time of delivery
CreditàWhether buyer can make payment later

4) What are the rights, if any of third parties. Someone other than the buyer or seller claiming an interest in the goods
A) Did the seller have valid title to the goods. If not, is the seller’s title totally void or voidable
B) Does any 3rd party claim priority as to the goods. Can a 3rd party creditor assert rights to the goods because the goods were subject to a negotiable document of title (
5) What performance is required under the K. has each party performed its obligations imposed by the K
A) Has the seller performed
i) Via carrier
ii) Directly to the buyer
iii) Tender of delivery of conforming goods
iv) Can defective tender be cured
B) Has the buyer performed
i) Acceptance

If the buyer interfered in any way with seller’s tender of delivery, the buyer has not properly performed under the K
Buyer rights to inspect or reject the goods

ii) Payment

When is pymt due
What method of payment is proper

6) Is a party has not performed, has performance been excused. Performance by one party is excused by the other’s party breach or anticipated breach,

by unforeseen circumstances
damage or destruction of w/o fault of either party

Whether the non breaching party has the right to demand assurances of counter-performance before performing
7) If nonperformance constitutes breach, what remedies are available to the injured party
A) Pre-litigation Remedies
i) Seller’s remedies
ii) Buyer’s remedies
B) Litigation Remedies
i) Seller’s remedies
ii) Buyers remedies
C) Remedy Limitations
8) Is it possible that other laws apply
A) Lease of goods
B) CICG [Contract for the Int’l Sale of Goods]

Scope of

Article 2

Article 2A-102

2-102 Transactions in the sales of goods
· Applied to transaction sin as diverse a sale of
· electricity, foreign currency
2-103 Scope
· applies to tangible property not real property

2A-102 Lease of goods including fixtures

Sale and Contract for sale of goods
2-106(1) Sale consists in the passing of title from the seller 2-103(1)(d) to the buyer 2-103(1)(a)

2A-103(1)(j) transfer of the right to possession and use of good for term in return for consideration
if lease grants security interestà Art. 9

Defn Goods

1) 2-105(1) all things that are movable at the time of identification to the K for sale, that is tangible property, not realty
A) capable of severance by sellerà crops, minerals [2-107(1)], timber [2-107(2)] B) Fixtures. Anything else attached to the land which can be removed without material harm thereto is covered, regardless of severance by the buyer or seller
2) Consumer goodsàused or bought for use primarily for personal, family, or household purposes
3) Unborn young of animals
4) Terms used to describe goods
A) Existing and identified
i) Once particularized by earmarkingàidentified
ii) Goods to be manufactured are only subject to Art 2 when actually manuf
B) Existing. May be identified at the time the K is made, owned or possessed by the transferor
C) Future goods
D) Fungible goods. Those of which any one unit is the equivalent of any other unit either by reason of its nature or commercial us

Formation Contract

1)

2)

Formation Contract

Terms of the Contract
Basic Steps
1) what si the agreement btwn the parties
2) is the K the same as the agreement
· Express terms
1) parties are free to agree to scuh terms as they see fit [2-102(3), (4)] 2) four categories
A) provision which state that they may be varied by agreement
B) those which provide that their effect cannot be varied by agreement of the parties
C) parties by agreement may disclaim implied warranties
D) those which do not expressly provide whether or not their effect may be varied by agreement

· Sources in determining the terms of the agreement
1) Course of performance
2) Course of Dealing
3) Usage of trade

· Unconscionable Terms “shocks the courts conscious and amount to a bargain that ‘that no man in his sense and under delusion would amek on the one hadn, and as no honest and air man would accept on the other.’” Earl of Chestefield v Jenssen (1750).
1) Question of unconscionability if one of law for the judge
2) Must be shown that the K or clause of was unconscionable at the time of the K
3) Setting , purpose and effect of K or clause are relevant in determination of unconscionability
4) After finding K or clause unconscionable ctà
A) Avoid the whole K
B) Enforce K w/o cluse
C) Limit the application of the clause that wil avoid unconscionable result